In Stowe Woodward LLC v. Sensor Products, Inc., Judge Conrad of the W.D. Va. applied a "heightened pleading" standard to the defendant's assertion that the plaintiff's claim under patent law was barred by the defense of "inequitable conduct."

This strikes me as unsound, in light of the Supreme Court's decisions Leatherman (section 1983) and Swierkiewicz (Title VII). I mean, if we can't use judge-made heightened pleading requirements in the cases that I'm interested in, why should the patent lawyers have all the fun?

Not too long ago, I wrote with regard to defamation, in a somewhat related context:

Thursday, September 08, 2005

Steve Sady has this Ninth Circuit Blog post on the split decision by the Fourth Circuit in U.S. v. Thompson. In that case, Judge Wilkinson wrote for the majority, joined by Judge Widener, with Chief Judge Wilkins in dissent, on the issue of whether the issue of the defendant's earlier crimes necessary to support the heightened sentence should have been submitted to the jury. Judge Wilkinson said no, Chief Judge Wilkins said yes.

Tuesday, September 06, 2005

VLW is reporting this week that: "Fastcase, a legal research company based in Alexandria, submitted the only proposal late last month in response to the Virginia State Bar's request for ways to provide online legal research service to every member of the organization."

Somebody talked me into paying for a trial subscription to Fastcase several years back. I generally like to play with new programs of any kind, but I hated this one, never used it more than a few times, and felt like a fool for having paid anything for it. Supposedly, it was written to be a "better" research tool, but I never saw any advantage to it of any kind, except that I suppose it could be cheaper than Lexis or Westlaw.

In Mettetal v. Vanderbilt University, the Sixth Circuit in an opinion by Judge Karen Nelson Moore joined by Circuit Judge Cook and District Judge Gwin from Ohio affirmed the dismissal of the plaintiff's various and sundry claims against the many defendants, including the late Judge Michael and various prosecutors, law enforcement officials, and defense lawyers connected in some way with the prosecution of the plaintiff in the W.D. Va. The appeals court reversed dismissal, however, as to Vanderbilt University and the Metro Nashville police, who were involved in the plaintiff's arrest and prosecution in Tennessee.

Monday, September 05, 2005

In this post, obviously locked in the throes of around-the-clock brief-writing, Ken Lammers declares that the Virginia courts are not as conservative as you might expect, although his examples are not especially compelling. I mean, the liberal courts are the ones running wild with the state constitutions these days, in Massachusetts and elsewhere.

From the New Yorker earlier this summer, here is an article on Patrick Henry College, the school with the debate champs, where Mike Farris is the president, and 85% of the student body were home-schooled.

Here are five incredible pages of transcripts and recordings of telephone conversations between President Nixon and Attorney General Mitchell about filling the two open seats on the Supreme Court, one that went to Lewis Powell. The other came down to a choice between William Rehnquist and Senator Howard Baker of Tennessee. Evidently, Baker was willing to take the job, but was done in by the fact that he and Powell were both Southerners, plus Nixon liked the idea of thrusting a well-qualified unknown on the legal establishment.

According to this exchange, Nixon was delighted to catch the pundits by surprise with the choice of Rehnquist:

"President Nixon: ...But on the other hand, we really threw a bombshell at these bastards tonight, didn't we?

John Mitchell: We really did--

RMN: What do you think?

JM: Well, let me tell you, they were just so flabbergasted they didn't know what to say...

RMN: Are they?...Of course, that first in his class is what these goddamn snobs - that's what impresses them. And law clerk to Jackson, that impressed Meany, they tell me...

RMN: This means, John, that we will have appointed four good men. Everybody recognizes that Burger is a good man, Blackmun is a good man, Powell, a course, everyone will recognize it. And Rehnquist is the smartest of the whole goddamn bunch

JM: (Unintelligible)

RMN: (Laughs) And he's on our side, isn't he?

JM: I think you did a great thing for the court.

RMN: I really built them up. You know, and I talked about respect the law, whether you agree and obey the law and all that. And they oughta appreciate it, the bastards-

JM: Well they should, and said it in a very mild mannered way. You got across to the American public

RMN: Be sure to emphasize to all the Southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is. In a pure press sense, it's like China--the bastards were completely taken by surprise. They didn't know what the hell was gonna hit 'em. Ha! Doesn't that amuse you? We kept it quiet..."

I suspect that if and when he ever read these word, Rehnquist found something amusing in these manic and ironic comments by President Nixon.